Was Mueller’s Appointment ‘Unconstitutional’?

In his latest attack on the Russia investigation, President Donald Trump tweeted, “The appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

This amounts to Trump’s opinion, and is a matter of debate among constitutional scholars. The Supreme Court ruled in 1988 that the appointment of an independent counsel was constitutional, but the rules and circumstances were a little different then. And the Supreme Court has not spoken directly on the constitutionality of current regulations for special counsels.

But here, we lay out some of the facts and arguments that underpin the cases for and against the president’s claim.

Independent or special counsels are appointed to investigate executive branch officials, and the existing federal code empowers the attorney general to make the determination when a special counsel is necessary.

According to the Code of Federal Regulations, there are grounds to appoint a special counsel if an investigation into a matter “would present a conflict of interest for the Department [of Justice] or other extraordinary circumstances” and in cases when it “would be in the public interest” to have an outside counsel.

Attorney General Jeff Sessions recused himself from the Russia inquiry after it was revealed that he had met twice with Russian Ambassador Sergey Kislyak during the presidential campaign and did not disclose the meetings during his Senate confirmation hearing. And so the decision about whether to appoint a special counsel fell to the “acting attorney general,” in this case, Deputy Attorney General Rod Rosenstein.

Just days after Trump fired FBI Director James Comey, Rosenstein announced that grounds existed to appoint a special counsel.

In his order appointing former FBI Director Robert S. Mueller III as special counsel, Rosenstein limited Mueller’s role to leading “the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including …. any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation; and any other matters within the scope of 28 C.F.R. § 600.4(a).” That last bit refers to a part of the federal code that says that the jurisdiction of a special counsel is to include “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”

As we said, Trump now claims the appointment of Mueller was unconstitutional.

The appointment of the Special Counsel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!

The argument, however, is not necessarily that the appointment of any special counsel would be unconstitutional, but rather that this one is, because of the broad investigative powers given to Mueller.

In an opinion piece written for the Wall Street Journal on May 13, Steven Calabresi, who once served as a special assistant to Attorney General Edwin Meese and as a law clerk to Justice Antonin Scalia, argued that the broad powers bestowed upon Mueller qualify him as a “principal officer” who by law must be appointed by the president and confirmed by the Senate.

Calabresi points to a Supreme Court decision in 1988, Morrison v. Olson, in which the court ruled that a previous iteration of the independent counsel statute (which has since expired) was constitutional. But in that case, Calabresi said, the court determined that independent counsel Alexia Morrison qualified as an “inferior officer” not subject to the appointment process.

In its opinion, the court wrote that it “does not attempt to ‘decide exactly’ what establishes the line between principal and ‘inferior’ officers, but is confident that, whatever the line may be, appellant ‘clearly falls on the inferior officer’ side.”

That determination was based in part on Morrison’s role being restricted to “limited duties, restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes” and the fact that she could be removed by the attorney general.

Rosenstein has maintained that he has the authority to remove Mueller. But Calabresi argued that “in contrast” to Morrison, Mueller “is investigating a large number of people and has already charged defendants with many different kinds of crimes, including — as in Mr. Manafort’s case — ones unrelated to any collaboration between the Trump campaign and Russia. That’s too much power for an inferior officer to have. Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving. … He is behaving like a principal officer.”

Douglas Kmiec, who teaches constitutional law at Pepperdine University, made similar arguments in an op-ed published in the Los Angeles Times.

“The courts have indicated that where a federal officer operates largely in an unsupervised fashion his or her appointment must be as a principal officer,” Kmiec told us via email.

“While it cannot be said that there is any single court ruling explicitly declaring unconstitutional an administratively appointed special counsel under the DOJ regulations, there are substantial questions that can be raised about the lawfulness of Mr. Mueller’s appointment,” said Kmiec, who was a principal deputy and then head of the Office of the Legal Counsel at the Department of Justice from 1985 to 1989. “Hence, while it is certainly overstatement for the president to simply declare that the special counsel is unconstitutional, it is also true that the president has a number of significant inquiries that can be raised in litigation based upon the separation of powers, the appointments clause, and post Morrison case law (the Supreme Court’s Edmond’s decision) which stands for the proposition that officers with significant authority must be appointed as principal, and not as inferior officers.”

Not all constitutional scholars subscribe to that argument, however.

“The idea of Mueller is unconstitutional is preposterous,” Neal Katyal, a professor of national security law at Georgetown University, said in response to Kmiec’s argument in Newsweek in October. “I can’t imagine such an argument flying in the courts.”

David Sklansky, who teaches criminal law at Stanford, told us it is simply not accurate for the president to claim that the appointment of Mueller was unconstitutional.

“In 1988, the Supreme Court ruled in Morrison v. Olson that the Constitution allowed an Independent Counsel to be appointed by a three-judge court, completely separate from the Executive Branch,” Sklansky said via email. “In reaching that conclusion, the Supreme Court held that an Independent Counsel is an ‘inferior officer,’ not a ‘principal officer,’ for reasons that very clearly apply to Mueller: (a) he can be removed by a higher-ranking Department of Justice official, (b) he is authorized only to investigate and, if appropriate, prosecute, particular federal crimes, not to formulate Department of Justice policy, and (c) his jurisdiction is limited to the matters delegated to him by the Department of Justice.

“The only significant difference between Mueller’s appointment and the appointment scheme for Independent Counsels, upheld by the Supreme Court in Morrison v. Olson, is that Mueller, unlike the Independent Counsels, was appointed by President Trump’s own appointee, Deputy Attorney General Rod Rosenstein, rather than by a three-judge court,” Sklansky said. “But that just makes the argument for the constitutionality of Mueller’s appointment even stronger. Given the Supreme Court’s ruling in Morrison v. Olson, there is no remotely plausible argument that Mueller’s appointment was unconstitutional.”

Editor’s Note: For more about the special counsel and how the office operates, please see our story “Special Counsel Q&A.”